Christopher Dante Loud v. State

Judgment Nunc Pro Tunc Vacated, Original Judgment Affirmed, and Majority and Dissenting Opinions filed December 7, 2010.

In The

Fourteenth Court of Appeals

NO. 14-09-00332-CR

Christopher Dante Loud, Appellant

v.

The State of Texas, Appellee

On Appeal from the 66th District Court

Hill County, Texas

Trial Court Cause No. 34,448

DISSENTING OPINION

This court should affirm the trial court’s March 13, 2009 judgment either because the trial court properly exercised its inherent power to correct or modify its prior judgment or because the trial court properly corrected clerical errors in the prior judgment.

Background

On February 13, 2009, the trial court signed a judgment adjudicating guilt and reflecting a conviction for aggravated assault under Texas Penal Code section 22.02(a)(1) (hereinafter, “Bodily Injury Aggravated Assault”).  The notation “N/A” was entered in the space for any deadly weapon finding.  Appellant timely filed a motion for new trial and a motion in arrest of judgment.  One week later, the State filed a motion for nunc pro tunc judgment.  The trial court conducted a hearing on the State’s motion on March 9, 2009.  During the hearing, counsel for the State indicated that the trial court had only thirty days after the date on which judgment was rendered to correct its judgment.  At the conclusion of the hearing, the trial court requested additional briefing and took the matter under advisement.

The trial court granted the State’s motion on March 13, 2009, within thirty days of sentencing and rendition of the original judgment.  On the same day, the trial court also edited its previous order of deferred adjudication to reflect the offense as “Aggravated Assault w/Deadly Weapon,” the offense statute as “22.02(a)(2) Penal Code,” and the findings on deadly weapon as “Yes, Not a Firearm.”  The trial court further edited the caption of the indictment, the order imposing conditions of community supervision, and the criminal docket sheet to reflect the offense of “Aggravated Assault w/Deadly Weapon.”  Finally, the trial court rendered a “Nunc Pro Tunc Judgment Adjudicating Guilt” reflecting a conviction for aggravated assault under Texas Penal Code section 22.02(a)(2) (hereinafter, “Deadly Weapon Aggravated Assault”) and including a finding of “Yes, Not a Firearm” in the space for any deadly weapon finding.

In a single issue, appellant contends the trial court erred and abused its discretion by adjudicating him guilty of Deadly Weapon Aggravated Assault and entering an affirmative deadly weapon finding in its March 13, 2009 judgment.  The majority appropriately confines its analysis and disposition to the issue of whether the trial court properly changed the judgment to enter a deadly weapon finding and to reflect a conviction for Deadly Weapon Aggravated Assault.

Trial Court’s Plenary Power to Modify its Judgment

In the body of the indictment it is clearly alleged that appellant committed Deadly Weapon Aggravated Assault and that he used a deadly weapon during the commission of the offense.  Appellant pleaded “no contest” to this indictment.  Appellant stipulated that the State could prove these allegations beyond a reasonable doubt and that these allegations are true. 

During the February 11, 2009 hearing, the trial court found that appellant violated his probation and twice pronounced that it found appellant “guilty of the offense alleged in the indictment,” which was Deadly Weapon Aggravated Assault, not Bodily Injury Aggravated Assault.  The trial court did not state that it found appellant guilty of Bodily Injury Aggravated Assault.  The trial court assessed punishment at fifteen years’ confinement and a $10,000 fine.  There is no issue before this court regarding the voluntariness of appellant’s plea.[1] Appellant is not challenging the manner in which he was admonished.   The focus of this appeal is the propriety of the trial court’s action in changing its judgment to reflect a conviction for Deadly Weapon Aggravated Assault rather than Bodily Injury Aggravated Assault and entry of a deadly weapon finding rather than no such entry. The first change bears on the offense for which appellant was convicted, not the punishment assessed for this offense.  The second change bears on whether the trial court entered a deadly weapon finding, which is an administrative matter that is not part of the guilt/innocence determination or part of the sentence.  See Ex parte Huskins,  176 S.W.3d 818, 820–21 (Tex. Crim. App. 2005) (holding that a deadly weapon finding is not part of the sentence or punishment and that, even though it may affect how the sentence is served, a trial court is not required to orally announce a deadly weapon finding at sentencing). 

The Texas Court of Criminal Appeals has indicated that (1) “a court has inherent power to correct, modify, vacate, or amend its own rulings” and (2) “a trial court has plenary jurisdiction over a case for at least the first thirty days after sentencing.”   State v. Aguilera, 165 S.W.3d 695, 698 n.7 (Tex. Crim. App. 2005) (quoting Awadelkariem v. State, 974 S.W.2d 721, 728–29 (Tex. Crim. App. 1998) (Meyers, J., concurring) and McClinton v. State, 121 S.W.3d 768, 769, n.1 (Tex. Crim. App. 2003) (Cochran, J., concurring)).  In Junious v. State, the trial court initially sentenced appellant to twenty-five years’ confinement and then later, within thirty days of sentencing, purported to grant appellant’s motion for new trial “as to punishment only” and to sentence appellant to ten years’ confinement.  See 120 S.W.3d 413, 415–16 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d).  On appeal in Junious, this court held that the trial court’s purported granting of a new trial as to punishment only was void and therefore a nullity.  See id.  Unable to uphold the trial court’s action based on the Junious appellant’s motion for new trial, this court held that the trial court modified the Junious appellant’s punishment while it still had plenary jurisdiction and that the trial court was authorized to do so based on its inherent power to vacate, modify, or amend its own rulings within the time of its plenary jurisdiction.  See id. at 416–17.  The Texas Court of Criminal Appeals later cited Junious with approval and indicated that Junious was correctly decided.  See Aguilera, 165 S.W.3d at 698 n.7. 

In Ware v. State, the defendant was convicted of two offenses, the second of which had a maximum sentence of twenty years’ confinement.  See 62 S.W.3d 344, 353 (Tex. App.—Fort Worth 2001, pet. ref’d).  In its oral pronouncement of sentence, the trial court stated that defendant was sentenced to seventy-five years’ confinement, without specifying the offense or offenses to which this punishment pertained.  See id.  After the defendant appealed and moved for a new trial, pointing out the maximum punishment for the second offense, the trial court held a hearing within thirty days of sentencing.  See id.  At this hearing, the trial court stated that it was granting a judgment nunc pro tunc, in which it was sentencing the defendant to seventy-five years’ confinement for the first offense and ten years’ confinement for the second offense, with the sentences to run concurrently.  See id.  The next day, the trial court signed a nunc pro tunc judgment consistent with its statements the day before.    See id.

On appeal, the Second Court of Appeals held that the pendency of the Ware appellant’s appeal did not prevent the trial court from modifying its judgment because the appellate record had not yet been filed in the Second Court of Appeals when the trial court modified its judgment.  See id. at 353–54.  The Ware court then concluded that the trial court’s modification could not be characterized as granting a motion for new trial or a motion in arrest of judgment.  See id.  The Ware court also decided that the trial court’s modification could not be upheld as a judgment nunc pro tunc.  See id. at 354–55.  Instead, the Ware court held that, because the trial court acted during its plenary jurisdiction over the case, the trial court had the inherent power to correct, vacate, modify, or amend its judgment and that it was proper for the trial court to correct its judgment in the way that it did.  See id.  Both the Texas Court of Criminal Appeals and this court have cited Ware with approval and indicated that Ware was correctly decided.  See Aguilera, 165 S.W.3d at 698 n.7; Junious, 120 S.W.3d 417. 

In the case under review, the trial court signed its March 13, 2009 judgment within thirty days of sentencing, while it still had plenary jurisdiction over the case.  See Aguilera, 165 S.W.3d at 697–99; Junious, 120 S.W.3d 417.  When the trial court modified its judgment, appellant’s motion for new trial and motion in arrest of judgment were still pending before the trial court.[2] See Ware, 62 S.W.3d at 355, n.5.  Though appellant already had filed his appeal when the trial court signed its modified judgment, the appellate record had not yet been filed.  See id. at 353–54.  On February 11, 2009, the trial court found appellant guilty of Deadly Weapon Aggravated Assault, as charged in the indictment, which constitutes an affirmative deadly weapon finding. The trial court modified the original judgment to accurately reflect that the trial court had found appellant guilty of Deadly Weapon Aggravated Assault and to enter a deadly weapon finding in the judgment.  Presuming for the sake of argument that the trial court’s March 13, 2009 judgment was not proper as a nunc pro tunc judgment, this judgment was still a proper exercise of the trial court’s inherent power to correct or modify its judgment while the trial court had plenary jurisdiction over the case.[3]  See Aguilera, 165 S.W.3d at 697–99; Junious, 120 S.W.3d 417; Ware, 62 S.W.3d at 353–55. 

Propriety of Nunc Pro Tunc Judgment

A judgment nunc pro tunc is appropriate to correct clerical errors when the court’s records do not reflect the judgment actually rendered.  See Ex parte Poe, 751 S.W.2d 873, 876 (Tex. Crim. App. 1988).  A nunc pro tunc order is not appropriate to correct judicial errors.  See id.  Therefore, to determine if the March 11, 2009 judgment is proper as a judgment nunc pro tunc, this court must determine whether the actual judgment rendered was a conviction for Deadly Weapon Aggravated Assault with entry of a deadly weapon finding.

The indictment put appellant on notice that he was charged with the offense of Deadly Weapon Aggravated Assault and that he was alleged to have used a deadly weapon during the commission of the offense. During the February 11, 2009 hearing, the trial court found appellant “guilty of the offense alleged in the indictment,” which was Deadly Weapon Aggravated Assault, not Bodily Injury Aggravated Assault.  The trial court did not find appellant guilty of any offense other than Deadly Weapon Aggravated Assault. Therefore, the record reflects that, though the trial court found appellant guilty of Deadly Weapon Aggravated Assault, the original judgment contained a clerical error reflecting a conviction for Bodily Injury Aggravated Assault. 

For the deadly weapon finding, there are two procedural steps: (1) the affirmative finding by the trier of fact that a deadly weapon was used or exhibited during the commission of a felony offense or during the immediate flight therefrom, and that the defendant used or exhibited the deadly weapon or was a party to the offense and knew that a deadly weapon would be used or exhibited, and (2) entry by the trial court of that finding in the trial court’s judgment.  See Tex. Code Crim. Proc. Ann. art 42.12 § 3g (a)(2) (West Supp. 2010).   Regarding the first step, because the trial court granted deferred adjudication, there was no reason for the trial court to make a deadly weapon finding until February 11, 2009, when the trial court adjudicated appellant’s guilt and pronounced the sentence. Appellant contends the trial judge first made the deadly weapon finding when he rendered the judgment nunc pro tunc.  This is not correct.  The use of a deadly weapon was alleged in the indictment as an element of the offense and, as fact finder, the trial court found appellant guilty as charged in the indictment. Consequently, the trial court made an affirmative deadly weapon finding during the February 11, 2009 hearing.[4] See Lafleur v. State, 106 S.W.3d 91, 95 & n. 23 (Tex. Crim. App. 2003) (stating that the trier of fact’s finding that defendant is guilty as alleged in the indictment constitutes a deadly weapon finding if the indictment itself alleges that the defendant used a deadly weapon during the commission of the offense); Ex parte Empey, 757 S.W.2d 771, 774 (Tex. Crim. App. 1988).   Regarding the second step in which the trial court enters the deadly weapon finding, the Texas Legislature has stated that, upon an affirmative deadly weapon finding, “the trial court shall enter the finding in the judgment of the court.” Tex. Code Crim. Proc. Ann. art 42.12 § 3g (a)(2).  The Texas Court of Criminal Appeals has stated that the Texas Legislature wrote this statute so that a deadly weapon finding would be entered in the judgment when the trier of fact found that a deadly weapon was used in the commission of an offense, and thus the Department of Corrections would know how to compute the defendant’s time for parole purposes.  See Lafleur, 106 S.W.3d at 94.  Consistent with the mandatory language used in this statute, when a jury finds a defendant guilty of a felony offense and use of a deadly weapon is alleged as an element of the offense, the trial court has a ministerial duty to enter a deadly weapon finding in the judgment.  See Ex parte Poe, 751 S.W.2d at 876.  A failure by the trial court to comply with this mandatory duty is a clerical error that can be corrected by a judgment nunc pro tunc.  See id. at 875–77. 

Even though the statute in question makes no distinction between bench trials and jury trials, the Texas Court of Criminal Appeals has held that, if the trial court is the fact finder, then the statute is construed differently.  See Tex. Code Crim. Proc. Ann. art 42.12 § 3g (a)(2); Hooks v. State, 860 S.W.2d 110, 112–14 (Tex. Crim. App. 1993).  If it is alleged in the indictment that the defendant used or exhibited a deadly weapon during the commission of a felony offense and if the trial court finds the defendant guilty as charged in the indictment, even though the trial court has made a deadly weapon finding, according to the Hooks court, the trial court has discretion to not enter a deadly weapon finding in its judgment.  See Hooks, 860 S.W.2d at 112–14.  The Hooks case has not been overruled and is binding on this court.  Therefore, the trial court’s judgment nunc pro tunc was proper as to the deadly weapon finding only if the trial court intended to enter a deadly weapon finding when it signed the February 13, 2009 judgment, which contained “N/A” in the space for “Findings on Deadly Weapon.”

Nothing in the record reflects that the trial court exercised its discretion to not enter the deadly weapon finding in its February 13, 2009 judgment.  The trial judge knew whether he intended to enter a deadly weapon finding in this judgment.  Because the trial court rendered a judgment nunc pro tunc, the trial judge impliedly found that he intended to enter a deadly weapon finding in this judgment but that, through a clerical error, no such entry was made.  Furthermore, the trial court was not required to orally pronounce a deadly weapon finding at sentencing.  See Ex parte Huskins, 176 S.W.3d 818, 821 (Tex. Crim. App. 2005). 

On this record, this court should conclude that no error has been shown in the trial court’s rendition of a judgment nunc pro tunc reflecting a conviction for Deadly Weapon Aggravated Assault and entry of a deadly weapon finding.

Conclusion

This court should affirm the trial court’s March 13, 2009 judgment because (1) this judgment was a proper exercise of the trial court’s inherent power to correct or modify its judgment while the trial court still had plenary jurisdiction over the case, or (2) this judgment was a proper judgment nunc pro tunc, correcting clerical errors that resulted in the February 13, 2009 judgment not reflecting the judgment that actually had been rendered.  Because the court does not do so, I respectfully dissent. 

                                                                        /s/        Kem Thompson Frost

                                                                                    Justice

Panel consists of Justices Anderson, Frost, and Seymore. (Seymore, J., majority).

Publish — Tex. R. App. P. 47.2(b)

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[1] Though appellant argues in passing in his brief that the original “guilty” plea was involuntary, the majority correctly declines to consider this argument because appellant did not voice this complaint in the trial court.  See Wright v. State, 295 S.W.3d 685, 691–92 (Tex. App.—Eastland 2009), aff’d, 312 S.W.3d 34 (Tex. Crim. App. App. 2010); Salinas v. State, 282 S.W.3d 923, 924 (Tex. App.— Fort Worth 2009, pet. ref’d). 

[2] The majority suggests that in its motion the State sought only correction of clerical errors and that therefore the trial court had no inherent power to modify its prior judgment.  First, the State’s motion can be construed as a request that the trial court modify its judgment to reflect a conviction for Deadly Weapon Aggravated Assault and entry of a deadly weapon.  See Ware, 62 S.W.3d at 353–55 (affirming trial court’s judgment nunc pro tunc based on trial court’s inherent power to modify judgment during trial court’s plenary jurisdiction). Second, the cases do not support the proposition that the State was required to ask for correction of judicial errors in a motion for the trial court in the case under review to have inherent power to modify its judgment.  See Aguilera, 165 S.W.3d at 697–99; Junious, 120 S.W.3d 417.

[3]  Whatever issues there may be regarding a trial court’s exercise of its inherent power to re-sentence a defendant after he has started serving his sentence, those issues are not presented in this appeal because the trial court did not change appellant’s sentence.  See Ex parte Huskins,  176 S.W.3d at 820–21 (holding that a deadly weapon finding is not part of the sentence).

[4]  Appellant relies upon Fanniel v. State, and argues that the trial court in the case under review was precluded from entering a deadly weapon finding in a judgment nunc pro tunc because the trial court did not originally make a deadly weapon finding when the defendant’s guilt was adjudicated.  See 73 S.W.3d 557 (Tex. App.—Houston [1st Dist.] 2002, no pet.).  In Fanniel, the record reflected that the trial court found defendant guilty only of possession of a controlled substance, was unaware of the enhancement paragraph alleging the use of a deadly weapon, and did not intend to make a deadly weapon finding when it found the defendant guilty of possession of a controlled substance.  See id. at 558–59. Therefore, the Fanniel case is not on point.